2009AP326, 2009AP327 Husar v. City of Brookfield

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Constitutional Law
Takings; uneconomic remnants

In this consolidated appeal, Craig S. and Danielle M. Husar and Robert P. and Karen L. Marsh (collectively "the appellants") appeal from a trial court judgment in favor of the City of Brookfield. The City condemned portions of the appellants' properties, taking a permanent limited easement across the Marshes' land, for purposes of creating ingress and egress to their residences, which would otherwise be landlocked due to the City's expansion of Calhoun Road. While the appellants do not challenge the necessity of the taking, the appellants brought this Wis. Stat. § 32.05 (2007-08) action against the City contesting the City's right to condemn the proposed portions of their properties. The appellants argued that the City's actions rendered their properties uneconomic remnants, thereby resulting in a total taking. The trial court disagreed and granted judgment in favor of the City. We conclude that the trial court's grant of judgment in favor of the City was based on an erroneous finding of fact which was premised in large part on the parties' treatment of the easement at issue as private in nature. Because the easement is public and because the nature of the easement is central to the issues in dispute, we reverse the judgment and remand for further proceedings. This opinion will not be published.

2009AP326, 2009AP327 Husar v. City of Brookfield

Dist II, Waukesha county, Bohren, J., Per Curiam

Attorneys: For Appellant: Roth, Robert W., Menomonee Falls; Niebler, Joseph C., Jr., Menomonee Falls; Hanley, James B., Menomonee Falls; For Respondent: Sager, Susan M., Milwaukee

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